Opinion
1427 KA 15–02163
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Jaspar S. THOMAS, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY DAVIS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY DAVIS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of five counts of robbery in the second degree ( Penal Law § 160.10[1] ; [2][a], [b] ). Defendant's contention that the prosecutor improperly impeached his testimony at trial based on his pretrial silence is not preserved for our review because defense counsel failed to make a specific objection on that ground (see People v. Materon, 276 A.D.2d 718, 719, 716 N.Y.S.2d 313 [2d Dept. 2000], lv denied 95 N.Y.2d 966, 722 N.Y.S.2d 484, 745 N.E.2d 404 [2000] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Defendant further contends that the prosecutor's impeachment of other defense witnesses and his remarks in summation were improper under People v. Dawson , 50 N.Y.2d 311, 428 N.Y.S.2d 914, 406 N.E.2d 771 [1980]. Defendant's contention is not preserved for our review because he never objected during the relevant cross-examination of the defense witnesses (see People v. Pilgrim, 146 A.D.3d 478, 479, 44 N.Y.S.3d 445 [1st Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ; People v. McGee, 17 A.D.3d 485, 486, 795 N.Y.S.2d 239 [2d Dept. 2005], lv denied 5 N.Y.3d 765, 801 N.Y.S.2d 260, 834 N.E.2d 1270 [2005] ) or during the prosecutor's closing argument (see People v. Butler, 214 A.D.2d 1014, 1015, 626 N.Y.S.2d 613 [4th Dept. 1995], lv denied 86 N.Y.2d 791, 632 N.Y.S.2d 504, 656 N.E.2d 603 [1995], reconsideration denied 89 N.Y.2d 920, 654 N.Y.S.2d 722, 677 N.E.2d 294 [1996] ). In any event, his contention is without merit. In Dawson, the Court of Appeals held that a prosecutor may cross-examine a defense witness concerning his or her failure to come forward with exculpatory information at an earlier date provided that a proper foundation has been laid ( id., 50 N.Y.2d at 321, 428 N.Y.S.2d 914, 406 N.E.2d 771 ). The prosecutor here laid the proper foundation (see People v. Garner, 52 A.D.3d 1329, 1329–1330, 860 N.Y.S.2d 371 [4th Dept. 2008], lv denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ; People v. Floyd, 45 A.D.3d 1457, 1459, 846 N.Y.S.2d 537 [4th Dept. 2007], lv. denied 10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809 [2008] ), and defendant does not contend otherwise. Defendant contends instead that Supreme Court erred in failing to "call a bench conference to ascertain whether the witness[es] refrained from speaking under the advice of defense counsel" ( Dawson, 50 N.Y.2d at 323, 428 N.Y.S.2d 914, 406 N.E.2d 771 ). Inasmuch as defendant never requested such a bench conference, we conclude that there was no error (see People v. Hall, 52 A.D.3d 734, 735, 860 N.Y.S.2d 608 [2d Dept. 2008], lv denied 11 N.Y.3d 832, 868 N.Y.S.2d 607, 897 N.E.2d 1091 [2008] ). Additionally, there is nothing in the record indicating that the witnesses refrained from speaking under the advice of defense counsel (see People v. Felipe, 66 A.D.3d 919, 920, 887 N.Y.S.2d 635 [2d Dept. 2009], lv denied 14 N.Y.3d 800, 899 N.Y.S.2d 134, 925 N.E.2d 938 [2010] ). Defendant's further contention that the prosecutor failed to act in "good faith" under Dawson is also without merit ( id., 50 N.Y.2d at 323, 428 N.Y.S.2d 914, 406 N.E.2d 771 ). The prosecutor's remarks in summation were fair comment on the testimony of the witnesses (see People v. Blake, 158 A.D.2d 348, 349, 551 N.Y.S.2d 826 [1st Dept. 1990] ).
We reject defendant's contention that he was denied effective assistance of counsel based on defense counsel's failure to preserve the above contentions for our review. Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). In addition, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence.
We agree with defendant, however, that the court erred in failing to determine whether he should be afforded youthful offender status (see generally People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ). Where, as here, the defendant has been convicted of an armed felony offense, the court is required "to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10(3)" ( People v. Middlebrooks, 25 N.Y.3d 516, 527, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015] ). If "the court determines that one or more of the CPL 720.10(3) factors are present, and the defendant is therefore an eligible youth, the court then ‘must determine whether ... the eligible youth is a youthful offender’ " ( id. at 528, 14 N.Y.S.3d 296, 35 N.E.3d 464 ). Inasmuch as the court failed to follow the procedure set forth in Middlebrooks, we hold the case, reserve decision, and remit the matter to Supreme Court to make and state for the record "a determination of whether defendant is a youthful offender" ( Rudolph, 21 N.Y.3d at 503, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; see People v. Quinones, 129 A.D.3d 1699, 1700, 12 N.Y.S.3d 429 [4th Dept. 2015] ).